Questions About Green Card Quotas and Backlogs
No. The visa category cannot be changed after the Labor Certification Application or I-140 (if there is no Labor Certification) is filed. And as quota backlogs are based on the filing date, it is against your interest to re-file a case in the same visa category only to obtain a later Priority Date.
The simple answer is no. However, if the position and the applicant qualify, an Immigrant Visa Petition could be filed in a higher Preference Category. Otherwise, the individual must wait until eligible to proceed with the last step in the process, which involves filing an application to adjust status to lawful U.S. Permanent Resident, or by obtaining an Immigrant Visa at a U.S. Consulate abroad.
Yes. If you have an I-485 application pending with USCIS, you are eligible for EAD and AP based on the pending adjustment application.
Unfortunately, a child cannot sponsor you for permanent residency until they are at least 21 years old. However, if you have a U.S. citizen child over 21 or a U.S. citizen spouse, please contact Goel & Anderson to discuss your options fully.
The State Department publishes the Visa Bulletin around every second week of each month. The bulletin provides information that takes effect on the first day of the following month. So, for example, the bulletin published in August contains information about the availability of immigrant visa numbers for the coming September. Depending on the availability of immigrant visas, the priority dates in each category for each country can change each month or stay the same. Priority dates can move very slowly or race forward months or years. They can also move backwards. As such, it is difficult - if not impossible - to anticipate when a category will become current.
The "American Competitiveness in the Twenty-First Century Act of 2000" (AC21) amended the Immigration and Nationality Act (INA) to provide relief to H-1B nonimmigrants in this situation. Pursuant to AC21 provisions, if you have an approved I-140, and you cannot proceed with the I-485 because an Immigrant Visa is not available to you, your H-1B employer may apply for extensions of your H-1B status in three year increments until such time as your application for Adjustment of Status has been granted or denied. If you do not have an approved I-140 petition, you may still be able to obtain extensions of your H-1B status in one year increments provided that 365 days or more have elapsed since the filing of a Labor Certification Application or the I-140 Petition. Your family's H-4 status may also be extended.
You may use the Priority Date attached to an approved I-140 Petition. The Priority Date is printed in the top left portion of the I-140 Approval Notice. When this date is current, you may file your Adjustment of Status or Immigrant Visa application based on your current employer's Immigrant Visa process.
Regardless of country of birth, everyone is potentially subject to quota backlogs. While some countries appear to be disproportionately affected by backlogs, the unavailability of Immigrant Visas can affect any country. One should review the Visa Bulletin often to determine eligibility for Adjustment of Status or Immigrant Visa processing.
No. To take advantage of AC21 Portability provisions, the I-485 must have been pending with USCIS for 180 days or more. It is also advisable to have an approved I-140 petition before pursuing a portability request.
An I-765 (EAD) based on an Adjustment of Status application cannot be filed unless an I-485 is pending with USCIS, so your spouse will need to seek independent work authorization, as he or she is not eligible for an EAD in this situation.
USCIS can still process the case, but approval can only be granted when the Priority Date is current. You may, therefore, receive requests for evidence or fingerprint appointments, and your compliance with such requests is essential. Even though the case cannot be approved, it may be denied if you fail to comply with these requests.
USCIS may request updated employment information. However, new photographs and medical exams are not typically required.
Yes, if you have an I-140 Petition pending, and your Priority Date becomes current, you and your dependents may file your adjustment applications while the Priority Date is current.
No. A current Priority Date is any date earlier than the published date in the Visa Bulletin.
Yes. USCIS will accept an application if a visa number is immediately available. However, your priority date can become unavailable if visa numbers retreat. Should this occur, your case will remain pending, and USCIS can only process it when your priority date becomes current.
No. Before a spouse can file an Adjustment of Status application, the Priority Date must be current. Moreover, if your pending adjustment application is approved prior to your marriage, your spouse will not be able to adjust status as a dependent. It is important to marry prior to the approval of the adjustment application, so your spouse is eligible to get the Green Card with you.
No. The Labor Certification process is unaffected by visa quota backlogs.
Yes. Fingerprint results expire after 15 months. USCIS will review the fingerprints when they are ready to complete adjudication of the I-485, and if the results have expired, they will issue a new fingerprint appointment notice.
No. Although security and background checks may have been the sole factors in the delay of your case, USCIS can only approve the matter when the Priority Date is current.
Yes. Although your case was approved, your dependent's application is still based on your priority date, and USCIS cannot approve your dependent's application until the Priority Date is current. The quota backlogs were not in affect when I filed my I-485 application.
Your spouse's country of birth can be used to determine Foreign State Chargeability. As an illustration, let's say your country of birth is Mexico, and there is a quota backlog for Mexico, but your spouse was born in Ireland, and there is no quota backlog for Ireland in your preference category. In this situation, you and your spouse may proceed with your immigrant process based on your spouse's country of birth. This is referred to as Cross Chargeability.
For the purpose of Cross Chargeability, you can only use your spouse's country of birth for eligibility.
No, because it depends on how many visas are used in your particular category. The availability of visas depends on actual usage, so it is difficult to predict when a particular priority date will become current
Yes. Irrespective of the immediate availability of Immigrant Visas, USCIS will process and adjudicate the I-140.
Yes. The filing and adjudication of an I-140 is not affected by the quota backlogs.
Your country of birth determines your country of chargeability. Chargeability simply refers to the country that your visa number is charged to.
- Employment-Based First Preference (EB-1)
- Employment-Based Second Preference (EB-2)
- Employment-Based Third Preference (EB-3)
- Other Workers
Other Workers includes positions that require less than two years of experience.
Employment-Based First Preference (EB-1) includes: (1) Persons of extraordinary ability in the sciences, arts, education, business, and athletics (persons at the pinnacle of their professions); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.
Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master's or PhD). (Note: An advanced degree is not the sole determinant in establishing EB-2 eligibility. The petitioner's job requirements must also require an advanced degree. Also, positions that require a Bachelor's degree and at least five years of progressively responsible experience are considered equivalent to a position where a Master's degree is necessary); and (2) Persons of exceptional ability in the sciences, arts, or business. Persons of exceptional ability are those who possess a degree of expertise beyond the ordinary.
Employment-Based Third Preference (EB-3) includes: Professionals and skilled workers. The offered position must require a minimum of a bachelor degree or two years of experience or training.
If a "C" is appears in your employment-based category in the Visa Bulletin, there is no quota backlog, and you may proceed with your I-485 adjustment application or immigrant visa application.
If your Immigrant Visa Preference Category requires Labor Certification, the priority date is the date the Labor Certification was filed with the Department of Labor. If your category is employment-based but requires no Labor Certification, the priority date is the date USCIS received the I-140 Immigrant Visa Petition.
Unavailable means no more visas are available for the month. If there is a date, say 1/8/2005, this is the cut-off date, which means there is a "quota backlog". Only individuals with a priority date earlier than the cut-off date may move forward with the permanent resident process.
The total number of employment based Immigrant Visas allotted in any Fiscal Year (October 1 through September 30) is fixed at 140,000. Generally, no country can exceed seven percent of the fixed total. Moreover, except for the immediate relatives of U.S. citizens (children, spouses, and parents), the number of visas available in each immigrant visa category, is also subject to numerical limits. Where immigration is employment-based, nationals of each country may obtain immigrant visas in different employment-based preference categories (i.e., EB-1, EB-2, EB-3). However, if established limits are exceeded in a particular category for a particular nationality, applicants are placed on a waiting list based on the date their application was filed with USCIS. This date is called the "Priority Date," and it is an important factor in any immigration case.
To obtain an immigrant visa, a visa number must be immediately available to you. In other words, your Priority Date must be "current." Current simply means there is no backlog in your Preference Category, or your Priority Date is earlier than the current date listed in the Department of State's monthly Visa Bulletin. The Visa Bulletin is accessible online, and you may sign up for monthly e-mails of the bulletin.
Questions About Concurrently Filing the Immigrant Petition for Alien Worker (I-140) and the Application for Adjustment of Status (I-485)
If you plan to marry soon, filing for AOS should be weighed carefully, as approval of the AOS prior to your marriage will substantially constrain your ability to bring your spouse to the U.S. quickly. If you are already married, applications can be filed for your spouse and any dependent children. If time is fast coming to a close on your temporary visa, filing concurrently for AOS may prove beneficial.
No. If you wish to pursue CP, you must wait until the I-140 is approved before proceeding through the process.
Before the rule, individuals had to await the approval of the Immigrant Petition for Alien Worker (I-140) before filing for Adjustment of Status (Form I-485). With the implementation of this rule, individuals can now file both applications at the same time so long as their priority date is current. In cases where the I-140 is pending adjudication, applicants can now file their Adjustment of Status applications with a current priority date.
It generally speeds up the process and also allows an individual to obtain other benefits from filing their Adjustment of Status applications, such as eligibility for advance parole travel documents and employment authorization cards which are particularly helpful when an applicant's nonimmigrant status lapses or when they change jobs under the Act's portability provisions ("AC21"). It should be noted that Adjustment of Status (AOS) is not considered lawful immigration status. Under the law, it is defined as a period of stay authorized by the Attorney General of the United States. In general, if you have properly filed an AOS application, and you subsequently allow your nonimmigrant status to lapse, you are technically in unlawful status, but you are protected from accumulating unlawful periods of stay for the purpose of future inadmissibility. This is a highly technical issue that is well beyond the scope of this FAQ. Nevertheless, because of this and other issues related to the ease of travel and ability to continue working interrupted while in temporary status such as H-1, L-1, E-1, etc., we generally advise clients to maintain such status when possible.
It went into effect on July 31, 2002.
Questions About Consular Processing
When an Immigrant Visa Petition is submitted on behalf of an individual by the petitioning family member or employer, AOS or CP must be selected. When CP is selected, USCIS will send the approved petition to the National Visa Center (NVC) where a CP case will be initiated. The NVC will notify the beneficiary when the priority date of his/her petition becomes current (or when a visa number becomes available) and will provide all the necessary information and application forms to start the immigrant visa application process. The NVC will issue an instruction package which includes a cover letter and check list regarding information needed for immigrant visa processing. Applicants are typically instructed to complete and file the Form DS-230 (Application for Immigrant Visa and Alien Registration), Form I-864 (Affidavit of Support) and supplemental information sheets on police certificate and civil document availability by country. All forms and documentation must be submitted to the NVC prior to your visa interview. The NVC additionally collects the required civil documents and police certificates. This process is called "document review." When the file is complete, the NVC will schedule an appointment for an interview with a consular officer and send the IV appointment letter to every valid address associated with the case record before forwarding the case file to the post. If the case file is incomplete or lacks proper documentation, the NVC will send a checklist to the petitioner, agent or applicant indicating what changes are needed. The petitioner, agent or applicant will be told to return the required information to the NVC. When the NVC has completed processing of the case, the approved petition and case file are sent to the applicable Embassy abroad for the applicant to complete his application and attend an interview with a consular officer.
Six to twelve months is routine, but delays at busy consulates are not uncommon.
You must have an approved Immigrant Petition for Alien Worker (I-140) or Petition for Alien Relative (I-130). This means that you are immediately eligible for an Immigrant Visa provided that your priority date is current. The Priority Date is the official date your application was filed with USCIS. In family based cases, the priority date is the date USCIS accepted the I-130 petition for processing. In employment based cases requiring labor certification, the priority date is the date the application for labor certification as accepted for filing with the U.S. Department of Labor (DOL). Where labor certification is not required, the priority date is the date USCIS accepted the I-140 petition. If demand exceeds the visa quota, the State Department will hold the approved petition until the Priority Date is current to complete processing. Priority dates are printed in the U.S. State Department's monthly visa bulletin.
An applicant can request CP processing after filing for AOS by filing Form I-824 with the USCIS. Processing times for such a request can be several months.
CP refers to the procedure through which an individual applies for an Immigrant Visa ("Green Card") at the American Consulate or Embassy in their home country, or country of last permanent residence. An alternative to CP is Adjustment of Status (AOS), a procedure that permits an eligible individual to become a lawful U.S. Permanent Resident without the need to go abroad to apply for an immigrant visa.
Upon approval of your petition by the consular officer following your interview, you will receive an Immigrant Visa package - you and applicable family members must enter the United States within 6 months after approval with your package. Upon your entry to the U.S., you will be considered a lawful permanent resident of the United States. The U.S. Customs & Border Patrol (CPB) officer at the border (land border or airport) will place a temporary stamp in your passport (I-551 stamp), which establishes your new status, and which is valid for travel and employment upon your arrival. USCIS will then order the actual Alien Registration Card ("Green Card").
Questions About Temporary Visas Expiring Before Permanent Residence is Approved
Generally, H-1 stay is limited to six years, and you must either leave the U.S. or change to another visa category (if eligible) before the allotted six years is exhausted. There are, however, some exceptions to the six year limit on H-1 stay based on the status of a pending permanent residency petition. Specifically, an H-1B may be extended beyond the six year limit in certain circumstances under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Section 104(c) of AC21 permits the extension of H-1B nonimmigrant status in three year increments beyond the six year limit where the H-1B nonimmigrant is the beneficiary of an approved I-140 and an immigrant visa is not immediately available (i.e., they are awaiting a current priority date). Section 106(a) of AC21 permits the extension of H-1B nonimmigrant status in one year increments if the I-140 petition or underlying labor certification has been pending for at least 365 days. These extensions are also granted to H-4 family members. Additional extensions are permitted in three and one year increments as the case may be provided that the applicant remains eligible for them. The above provisions of AC21 do not apply to individuals holding L status. As such, L visa holders may not extend their status for more than the maximum allotted five or seven years based on the status of a permanent residency petition.
Comparing Consular Processing Versus Adjustment of Status
A frequent subject of questions we are asked involves the comparative benefits and shortcomings of securing lawful U.S. permanent residence (Green Card) by Consular Processing (CP) or Adjustment of Status (AOS).
In the past, one could pursue both procedures simultaneously, but this is no longer possible. The individual must now select one method, and it can be impractical to change once the choice is made. Both procedures have advantages and disadvantages and there is no "right or wrong" choice. This summary explores the general benefits and drawbacks of both procedures:
Adjustment of Status
AOS (Form I-485) is submitted by mail at the Nebraska or Texas Service Center for employment-based cases, or at the National Benefits Center for family-based cases. In most employment based cases, no interview is required, and the approval is received by mail. The following are some advantages of AOS:
- Travel abroad not required;
- Right to legal counsel and the opportunity to request reconsideration of an adverse decision;
- Ability to remain in the United States and obtain employment authorization for the principal, spouse, and children;
- Certain provisions in the American Competitiveness in the 21st Century Act (AC21) allow applicants to continue the application for lawful permanent residency even when they have changed jobs provided certain conditions are met. These "portability provisions" are not available through CP.
While CP has in some instances been faster than AOS, the process can be more demanding, particularly for applicants who intend to reside in the U.S. for extended periods. The process is completed at a U.S. Embassy or Consulate abroad through the U.S. Department of State (DOS), not the Citizenship and Immigration Services (USCIS). Some difficulties associated with pursuing CP include:
- Compulsory travel to one's home country in order to complete a mandatory interview at the American consulate or embassy;
- Required police clearances from all countries of resided in for periods of six months or more since turning 16 years of age (for a limited number of countries this is waived);
- Completion of a medical exam in the home country and coping with frequent delays encountered in the transmission of the results to the consulate;
- The loss of any right to legal counsel or to established reconsideration procedures in the event of an adverse decision.
In spite of the potential challenges associated with CP, the process can be particularly beneficial for applicants who are assigned overseas for a lengthy period of time or those who have family obligations that require living abroad. It is recommended that applicants considering CP versus AOS make their decision after consultations with their attorney and sponsoring employer.
Immigration laws and regulations are constantly changing, so please feel free to contact Goel & Anderson with any questions or concerns you may have regarding this or any other immigration issue.